Excerpt:.....can treat such a party as having been in possession of the immovable property concerned as on the date of preliminary order. ' if the civil court dealing with a reference remitted it under section 146(1) of the code, had pursued the aforequoted observation in the order made on the 24th may, 1965 then it would have noticed that the preliminary order under section 145(1) of the 'code had been passed on the 29th february, 1964 inasmuch as by that order the parties had been called upon to put in their written statements and affidavits as well as other documents concerning their claim. it was the duty of the civil court to find as to which precisely was the date on whichthe preliminary order had been made under section 145(1) of the code. a perusal of the civil court's order dated the 17th..........can treat such a party as having been in possession of the immovable property concerned as on the date of preliminary order. when a reference is made under section 146 of the code, to a civil court of competent jurisdiction to decide as to which of the parties was in possession of the property in dispute on the date of the preliminary order then the civil court is statutorily bound to act within the scope of sub-section (4) of section 145 of the code. section 146 of the code, is ;-(...) subsection (1) of section 146 prescribes that the civil court's determination will relate to the possession of a particular party on the date of the preliminary order and the civil court can utilise the proviso contained in sub-section (5) of section 145 of the code only to find as to whether any party.....

Judgment:

P.S. Safeer, J.

(1) This revision petition has come up in consequence of a recommendation made under section 438 of the Criminal Procedure Code (hereinafter called 'the code) by an Additional Sessions Judge, Delhi that the order dated the 6th May, 1972 passed by Mr. K.M. Sawhney, Sub Divisional Magistrate, Punjabi Bagh be set aside. By that order the learned Sub Divisional Magistrate had rejected the objections preferred by the present petitioner.

(2) In order to appreciate the circumstances leading to the recommending order, it may be noticed that on account of the reports and counter-reports by the parties to the police, proceedings under section 145 of the Criminal Procedure Cod; were initiated in order to prevent a breach of peace. The dispute related to immovable property consisting of land measuring 61 bighas 8 bids was situated in village Dhichaon Kalan and 14 bighas 1 biswa situated in village Haibetpur. The dispute also related to two houses situated in village Dhichaon Kalan.

(3) One Lala Ram bad a daughter and a son. The name of the so a was Het Ram, who. was married to Smt. Baldeyi. Smt. Triveni Devi was bom out of that wedlock. She gave birth to the present petitioner and after demise of his son Het Ram, Lala Ram adopted Chetan Sarup as bids son? The immovable property the possession whereof occasioned an apprehension of breach of peace between the parties-was left by deceased Lala Ram.

(4) On talcing cognizance of the proceedings under section 145, Criminal Procedure Code, it was the duty of the Magistrate to pass a preliminary order under section 145(1) thereof. No such order having; b;en passed, in the first instance, by Mr. R.S.Dewan, his successor Mr. Gajendra Singh passed the preliminary order on the 29th February, 1964. In order to prove their respective possession, the parties filed several affidavits. At one stage there was a controversy that some of the affidavits filed could not be taken into consideration as the same had not been attested by a Magistrate and had been sworn before Oath Commissioners.

(5) Having heard the parties Mr. R.S. Dewan, Sub Divisional Magistrate who had once again come to occupy the same chair to which Mr. Gajendra Singh bad succeeded,. decided to make a reference under section 146 of the Code to the Civil Court for determining within the scope of sub-section (4) of 145 of the Code as to which of the parties had been in possession. Section 145(4) of the Code, is :-(...).

(6) The provisions prescribes that, if possible the Magistrate may decide the question as to which of the parties was in possession of the disputed immovable property on the date of the preliminary order. The second proviso permits that if any of the parties is found to have been in possession of the disputed immovable property within two months next before the date of the preliminary order or is shown 10 have been forcibly and wrongfully dispossessed within that period, he may be treated to have been in possession on the date of the preliminary order.

(7) It must be noticed that section 145 of the Code in itself is an exceptional provision. Section 145 of the Code confers exceptional jurisdiction on thecriminal court. The right and title including the right to possession in respect of the immovable property is ordinarily to be determined by a Civil Court. Where there may he an apprehension of breach of peace, the criminal court may pass an order determining, as to which of the parties will be entitled to the possession of the immovable property concerned till the rights of the parties are finally determined through Civil adjudication. Where such an exceptional jurisdiction is given and insistence is visible that the criminal court is to determine as to which of the parties was in possession of the immovable property as on the date of the preliminary order which the criminal court has to pass under section 145(1) of the Code, the proviso in sub-section (4) is to be considered as emphasising the exception inasmuch as even 'where it is found that within two months next before the passing of the preliminary order any of the parties has been forcibly and wrongfully dispossessed then the Magistrate can treat such a party as having been in possession of the immovable property concerned as on the date of preliminary order. When a reference is made under section 146 of the Code, to a civil court of competent jurisdiction to decide as to which of the parties was in possession of the property in dispute on the date of the preliminary order then the civil court is statutorily bound to act within the scope of sub-section (4) of section 145 of the Code. Section 146 of the Code, is ;-(...)

SUBsection (1) of Section 146 prescribes that the Civil Court's determination will relate to the possession of a particular party on the date of the preliminary order and the Civil Court can utilise the proviso contained in sub-section (5) of section 145 of the Code only to find as to whether any party is to be deemed to have been in possession as on the date of the preliminary order if it had been forcibly and wrongfully dispossessed within two months before the passing of the order under section 145 of the Code.

(8) I have perused the order made by Mr. R, Sub Divisional Magistrate on the 24th May, 1965 and I find that in paragraph 1 thereof it was stated :-

'ONreceipt of this report a preliminary order was issued on 29.2.1964 by my learned predecessor Shri Gajendra Singh calling upon the parties to put in their written statements, affidavits and other documents concerning their claim to the actual possession.'

If the Civil Court dealing with a reference remitted it under Section 146(1) of the Code, had pursued the aforequoted observation in the order made on the 24th May, 1965 then it would have noticed that the preliminary order under Section 145(1) of the 'Code had been passed on the 29th February, 1964 inasmuch as by that order the parties had been called upon to put in their written statements and affidavits as well as other documents concerning their claim. The observation quoted from paragraph 1 of Mr. R.S Dewan's order of reference made under Section 146(1) of the Code uses the phraseology employed in Section 145(1) of the Code. In paragraph 7 of the same order, however, it was stated :

'I have heard the arguments of the parties and examined the affidavits and documents filed by the parties. In this case the main dispute is as to which of the party was in actual possession of the property two months prior to 29-2-1965. From the documents on record. I am unable to decide as to which of the party was in possession of the subject of dispute. I, thereforee, refer the matter to the Civil Court under Section 146 Cr. P.C. to give his finding as to which of the party is in possession.'

(9) The order made by the Magistrate under Section 146(1) of the Code which gave jurisdiction to the Civil Court to decide the controversy within the scope of Section 145 and 146 of the Code should have been read as a whole. It was the duty of the Civil Court to find as to which precisely was the date on whichthe preliminary order had been made under Section 145(1) of the Code. Without finding for itself the exact date of the preliminary order passed under Section 145(1) of the Code, the Civil Court could not have exercised any competent jurisdiction for coming to any conclusion within the scope of Section 146 of the Code. The Civil Court whenever it is to decide in accordance with the reference made under Section 146 of the Code has to acquaint itself with every part of Section 145 of the Code. A perusal of the Civil Court's order dated the 17th February, 1972 discloses that it never found for itself as to when the preliminary order has been passed under Section 145(1) of the Code and after allowing opportunity to the parties concluded its enquiry by the judgment, the very first sentence in which, is :

'THEjudgment shall decide the controversy as to which of the parties to the proceedings was in actual possession of the property two months prior to 29-2-196 5.'

In paragraph 10 of the same judgment the Civil Court observed :

'ASa result of my above findings, I bold that from the oral as well as documentary evidence, it stands proved to the hilt that Tribeni Devi second party has been in possession of the land and houses two months prior to 29-2-1965.'

ONreceiving the decision by the Civil Court it was the duty of the Criminal Court to notice that the Civil Court had never discovered for itselfthe precise date on which the preliminary order had been passed and that its decision was confined to the concept that the preliminary order had been passed under section 145(1) of the Code on the 29th February, 1965, Two courses were then open to the criminal Court, it could have remitted back the decision made bythe Civil Court pointing out that the preliminary order had been passed on the 29th February, 1964 and that the reference under section 146(1) should have been decided on that basis The other course was that the Criminal Court should nave ignored the determination by the Civil Court. In my view, the first course should have take a priority. Since the predecessor of the Criminal Court had made the reference under section 146(1) of the Code, and the Civil Court had not attended to the precise date on which the preliminary order had been pissed the determination should have been remitted back.

(10) It is urged by Mr. OP. Soni appearing on behalf of Smt. Tribeni Devi that the Civil Court went into great details and' dealt with the possession of the parties as it prevailed since 1963. The learned counsel urges that the error is not such which may be said to have invalidated the finding by the Civil Court. I cannot accept the argument Section 146 of the Code prescribes limitations. The Civil Court has to act within the obligations imposed by Sub-sections (I) and (4) of s. 145 of the Code. Where a Civil Court decides a reference made to it under section 146(1) in complete disregard of the precise date of the preliminary order, its order is ab initio void and such a decision does not ensure for any purpose. It is not open to the Criminal Court to act on it.

(11) Accepting the recommendation, the order made by the trial court on the 6th May 1972, is hereby set aside. Exercising the jurisdiction given by Article 227 of the Constitution of India, it is directed that the parties will appear before the Senior Sub Judge, Delhi on the 19th January, 1973, who will assign to the court of competent jurisdiction the determination of the reference made under section 146(1) of the Code by the Sub Divisional Magistrate on the 4th May, 1965. Long years of litigation have gone by. I is expected that the learned Sab Judge, who will deal with the reference will give priority to its determination and will send the report to the concerned Magistrate with in period of three months from the date on which the parties appear after the reference is assigned by the Senior Sub Judge.